Monday, January 4, 2016

Will Obama's Executive Order Cap Private Gun Sales at 50 Per Year?

Many news stories are reporting that President Obama is set
to announce an executive order on the topic of gun control. This executive
order is intended to limit private sales and increase the numbers of gun sales
or transfers that require a background check. Incidentally (perhaps
intentionally too), it will also gut gun shows of private sellers, some of whom
admittedly probably should be licensed, based on volume. Unfortunately, this
executive order will have a chilling effect on the right to keep and bear arms,
increase the power of an ineffectual agency, the ATF, and is a redundant
measure to existing laws which go largely unenforced.

As a hostile Congress has repeatedly stymied Obama’s
requests to close this or that loophole and pass “meaningful” gun control, an
executive order is his last resort. Obama has stated several times in the past
few months that gun control is the final major objective he would like to
achieve before leaving office. Out of all the options available to him, he has
arrived at empowering the ATF, by using its regulatory discretion (authorized
by Congress long ago), to precisely define what being “engaged in the business”
of buying and selling firearms is exactly.

President Obama’s executive order is intended to cut down on
the numbers of private gun sales that cannot be tracked through background
checks. The ultimate plan, as I have unveiled in my exposé of the UBC initiative,
is to force all sales through dealers, under the guise of increasing background
checks to ease the implementation of a sale/transfer based gun registration
system.

If President Obama’s executive order passes, and universal
background checks for that matter, gun buyers will be required to pay at least
$25 in Nevada, perhaps more, depending on the dealer, to buy or transfer a gun.
In states like California where private sales are illegal, the fees generally
run from $75 to $100 or more dollars.

“Engaging in the
business”

Many are wondering exactly what can the president do? Federal
officials admit that “engaging in the business” is a hard phrase to define, in
terms of numbers and conduct. Suggestions have been made for over two decades
to more strictly define the term to narrow who may sell without a license.
First, we need to understand the phrase "engaged in the business".

The 1968 Gun Control Act defines: "engaged in the
business" as:

“as applied to a dealer in firearms, … a person who devotes
time, attention, and labor to dealing in firearms as a regular course of trade
or business with the principal objective of livelihood and profit through the
repetitive purchase and resale of firearms, but such term shall not include a
person who makes occasional sales, exchanges, or purchases of firearms for the
enhancement of a personal collection or for a hobby, or who sells all or part
of his personal collection of firearms...”

and “with the principal
objective of livelihood and profit” as:

“The term ‘with the principal objective of livelihood and
profit’ means that the intent underlying the sale or disposition of firearms is
predominantly one of obtaining livelihood and pecuniary gain, as opposed to
other intents, such as improving or liquidating a personal firearms collection;
Provided, That proof of profit shall not be required as to a person who engages
in the regular and repetitive purchase and disposition of firearms for criminal
purposes or terrorism...”

President Obama’s power in this particular case is limited
strictly to his control as chief executive over the Bureau of Alcohol, Tobacco,
and Firearm. As they have done before regarding various types of ammunition and
devices like the Sig Brace, the ATF can make some regulatory decisions.
Congress has specified that the ATF may create regulations to further the
enforcement of legislation. In this case, the president will direct the ATF to
create a numerical definition of “engaged in the business” of buying and
selling firearms.

This is entirely in keeping with the power of the ATF and
the president, even though it contradicts a strict view of the Second Amendment
and confuses the issue of separation of powers. President Obama cannot ban gun
shows, he cannot ban private gun sales, and he cannot mandate universal
background checks, at least not without becoming a dictator.

He can however decimate gun shows by threatening private
sellers with their large numbers of guns for sale with prosecution if they sell
X number of too many guns. At the extreme end of the debate on what the
president will do, some have said that “multiple” sales, meaning more than one
gun in a given period, would equate being “engaged in the business.”

How many make it
business?

The question is not is President Obama going to place a
number on what constitutes “engaging in the business”, but rather, what that
number is going to be.

Several
cases found the following variation in numbers that under the totality of
the circumstances equaled “engaging in the business.” For example: 30 firearms
bought and sold over a 4-month period, three transactions involving eight
firearms over 3 months, more than 12 firearms transactions over “a few months”,
codefendants sold 11 firearms at a single gun show; 11 firearms sold over 6
weeks, six firearms sold over 2 weeks.

There is no easy metric, as an avid shooter could purchase a
number of firearms in a year, determine they do not like the gun they bought,
and turn around and sell it. Some may be forced to liquidate very large firearm
collections due to financial needs or upon the death of a relative. In the
first case, a wealthy, avid shooter could (for example) conceivably try out one
new gun a month and sell it. For a professional firearms reviewer who prefers
to remain independent and not accept trial weapons, this is entirely realistic.
A large gun collection ranging from dozens to hundreds could likewise be liquidated
for various reasons. Neither would be “engaging in the business”, though
through factors like market demand or appreciation, a profit could be made.

How many at a time, or in a year, and with what intent? For
instance, 10 guns, four times a year, sold by advertisement or at a gun show?
Someone could still sell 40 guns that way. Online sources have variously
speculated that the number is anywhere between five and twenty-five a year, or
even “one gun per month.” The most accurate estimate that anyone has gleaned
from the Obama Administration has come from the Washington
Post with 50 guns annually and even the Justice Department conceded the
difficulty in setting such a number.

“White House officials drafted the proposal in late 2013 to
apply to those dealers who sell at least 50 guns annually, after Congress had
rejected legislation that would have expanded background checks more broadly to
private sellers. While the White House Office of Legal Counsel and then-Attorney
General Eric H. Holder Jr. initially concluded the regulation was legally
defensible, according to several individuals involved in the discussions, some
federal lawyers remained concerned that setting an arbitrary numerical
threshold could leave the rule vulnerable to a challenge.”

Nevada Carry believes
50 is the number the president will specify, saying it allows for
liquidation of collections and pursuit of hobbies, etc. Gun grabbers always
want to appear reasonable in their ‘common sense’ demands because they never
see themselves as they potential tyrants that they are.

To be in violation of the law and truly “engaging in the
business”, one must be “obtaining livelihood and pecuniary gain” from the sale
of firearms; that is deriving income to live by or getting some monetary gain,
i.e. profit. Simply making a profit, as I go into further detail below, is far
too narrow of definition, in fact, it would be unconstitutionally vague by
itself.

Imagine a license being required to sell a gun privately
because it is worth more than when you bought it and such increase in value is
a ‘profit.’ The Glock 42 and 43 series of single stack pistols are very popular
and were in quite high demand upon their introduction. Many shooters bought
them because of their novelty, only to find that they disliked the Glock
trigger or another factor and then offered them for sale online. If a private
buyer is willing to pay more than the seller paid, because of scarcity, should she
seller be required to be licensed?

Everytown has an article on its widely criticized research
website with sensational stories of guns sold privately that resulted in tragic
death. The examples they cited ranged from 16 to 700 guns sold. While the
latter case, based on sheer volume over time alone, can be undeniably cited as
someone “in the business”, numbers as low as 16 approaches the level of
arbitrary.

A numbers-sold only approach is ineffective. Let’s say the
rule is 50 guns sold in a year is “engaged in the business.” So I have to get a
license to sell the 51 guns in my deceased father’s collection?

No one really knows what the number will be. Perhaps the
president will use an average of statistics gathered from prosecutions and ATF
investigations to make an educated guess at what the number should be. The
following weeks can only tell.

Gun shows really a
problem?

Those who have been to gun shows know that private sellers
range from people looking to sell one or two of their guns to vendors with
tables full of guns, sometimes the indistinguishable from licensed dealers.
Without a doubt, some people take advantage of being a private seller to
unlawfully “engage in the business” because it is easier than being a federally
licensed dealer and are seeking to make a business income without the overhead
and responsibility of a legitimate business.

Prohibited persons and unscrupulous private sellers do take
advantage of private sales to avoid background checks. This is the main reason
why the president and the Justice Department are so opposed to private gun
sales, at least publicly. From a licensed dealer’s perspective, it can be
frustrating to have to run a business legally and responsibly while watching an
unlicensed dealer skirt the law, sell to criminals (intentionally or not), and
avoid taxes and business expenses. Most Americans can agree that we should all
play fair.

When it comes to providing crime guns, most felons and
prohibited persons don’t get their
guns from gun shows or the private dealers there. The National Sport Shooters
Foundation, which represent dealers, said
the following about an anti-gun group’s report on gun shows:

“Interestingly, the report does unwittingly prove that gun
shows and online sales are not the problematic Wild West that gun control
groups claim they are. Defendants only used them in a small minority, 10
percent, of the cases examined. The other 90 percent of the time the
individuals accused of buying or selling firearms illegally were not relying on
gun shows, online markets or print ads.”

Another report
found that “Gun shows are frequently implicated in trafficking investigations
yet less than 2% of felons incarcerated for crimes involving guns had acquired
those guns themselves at gun shows.”

Clearly, gun shows aren’t the problem. As far as regulating who
should have a license and who shouldn’t, based on frequent gun sales in volume,
the ATF (responsible for such matters), has failed at this task for decades.
This is another regulation that is not going to be enforceable. Existing
regulations can be enforced, except that evidences shows the ATF does not do
its job.

“We found that the ATF’s inspection program is not fully
effective for ensuring that FFLs comply with federal firearms laws because
inspections are infrequent and of inconsistent quality, and follow-up
inspections and adverse actions have been sporadic. [...] the ATF manipulates the criteria it uses to
target FFLs for inspections so that it only identifies as many such FFLs as it
has the resources to inspect.”

They also found that suspected criminal violations are not
always referred for criminal investigation.

“In our interviews, 12 of 18 Inspectors said that they
rarely refer information gathered during FFL inspections to Special Agents
because they did not believe that Special Agents would follow-up on the
information.”

The ATF could easily curb the amount of unlicensed dealers
abusing the system, yet they do not. Time and time again the federal government
fails to regulate or investigate and legislation, in this case by presidential
decree, is offered as ‘a solution.’ All the executive order will do to the
benefit of ATF enforcement is require the special agent to be able to count in
order to determine if there is a violation or not.

Constitutionality

America has entered a strange period where the Supreme Court
makes decisions based upon partisan affiliation and the popular mood of the
country. One only needs to look at the decisions on Obamacare and gay marriage
issued in 2015 for examples. On the gun front, DC vs. Heller goes unenforced outside of Washington D.C. and the
Supreme Court, likely out of fear of the liberal justices attempting to
overturn the Second Amendment, has not taken additional cases to settle matters
definitively. To do so would take the Supreme Court to decide, once and for
all, that “shall not be infringed” means exactly that.

Even while an unquestionable right remains assailed in
piecemeal around the country, the president has resolved to act any way he can.
Reduced to executive order, he will do that. While he could issue an
extraordinary decree, such as banning ‘high capacity’ magazines, such an action
is not within his discretion as it is a legislative issue and Congress has not
granted him any authority, express or implied, to decree on that topic. As I
said above, he could direct the ATF to define “engaged in the business” ruining
anyone who wishes to sell large numbers of guns privately.

I believe that (at least in a sane judiciary), any attempt
to place a number on “engaged in the business” would be unconstitutionally
arbitrary without Congress defining the term. For instance, one liquidating a
collection because of age, etc. might cross the magic number, but wouldn’t
necessarily doing so to earn a livelihood or any extraordinary “pecuniary gain”.
A prosecutor would still have to argue in front of a jury just what about a man
selling off all but a handful of his guns in order to pay his daughter’s
medical bills made him “engaged in the business.” Surpassing an arbitrary
number or arguing that one made a profit equals guilt cannot overcome the legislative
intent that it was meant to regulate business enterprises.

An executive order, rather than court cases, might itself be
subject of successful court challenge. The National
Review wrote:

“the Court held that President Truman had exceeded his
authority by directing the seizure of steel mills to avert a strike during the
Korean War, stating that ‘the president’s power to see that laws are faithfully
executed refutes the idea that he is to be a lawmaker.’ Thus, the majority
found that Truman had strayed too far into the province of the legislature,
violating the separation-of-powers doctrine."

Executive orders are based on the clause from the
Constitution that the president “take Care that the Laws be faithfully executed.”
He cannot institute new laws. Well, he can try, but without a Congress willing
to play along (Obamacare), his attempts will be unconstitutional.

The ATF may tackle people who should be FFLs, have a
business license, and pay taxes like the rest of us, but their regulatory and
enforcement power should not be used to put gun shows and private sellers out
of business. It would be like the FDA shutting down a regular fundraising bake
sale because none of the food was prepared in a commercial kitchen. In any
case, President Obama can do what he likes, but ultimately, the Second Amendment
exists for the main purpose of overthrowing men like Obama and Hillary who
would seek to confiscate civilian firearms.